A recent study conducted by researchers at King’s College London estimates that around 1 in 7 people with COVID-19 will be ill for at least 4 weeks, 1 in 20 for 8 weeks and 1 in 45 for 12 weeks or more after having initially become unwell.

Although there is currently no universally recognised medical definition for the range of ongoing or intermittent symptoms which have been reported after having contracted the virus, and which are commonly referred to as “Long-COVID”, these can be serious and debilitating. Reported symptoms include breathlessness, heart palpitations or rapid heartbeat, lung damage, joint and muscle pain, fever, fatigue/exhaustion, insomnia, headaches, loss of taste and smell, and a lack of concentration (“brain fog”), as well as mental health issues such as anxiety.

Employers should consider how they can assist those employees who are well enough to return to work but have Long-COVID, to ensure that employees are as engaged and productive as possible during these challenging times. However, given there is no statutory cap to compensation for a successful disability discrimination claim, it will also be important for employers and managers to consider whether there may be a new group of disabled employees who will be entitled to the statutory protections discussed below. To this effect, Michelle Chance (Partner) and Louisa Hartley (Solicitor) consider whether Long-COVID is likely to be a new form of disability for employment law purposes and how employers should mitigate the risks of disability discrimination claims.

A new form of disability?

Disability is a protected characteristic under the Equality Act 2010 (as amended) (the “Act”) which defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.

Physical or mental impairment

Although there is no statutory definition as to what amounts to a physical or mental impairment for the purposes of the Act, it is the effect that the impairment has which is key (rather than how it was caused). Given the symptoms of Long-COVID (as above), we do not think it is controversial to say that many of these could be classed as a physical or mental impairment, especially symptoms such as breathlessness, lung damage, joint and muscle pain and exhaustion.

The key (and less clear) issues determining whether Long-COVID will be a disability for the purposes of the Act are whether there is a substantial, long-term adverse effect on the ability of the individual to carry out normal day-to-day activities.

Substantial

The Equality Act Guidance (the “Guidance”) states that a substantial adverse effect is one that is more than minor or trivial.  This should be determined on a case by case basis and the main consideration should be the effect the disability has on the individual employee.

In our view, symptoms such as partial loss of taste or smell may not necessarily be considered to be substantial whereas more serious symptoms such as lung damage, significant muscle and joint pain, exhaustion and mental health issues could well be substantial for some employees (who may need time off work, for example if their symptoms flare up).

Long term

For the purposes of the Act, an impairment will have a long term effect if it has lasted, or is likely to last, at least 12 months or it is likely to last for the rest of the life of the person affected.

The Guidance states that the cumulative effect of related impairments should be taken into account when determining whether someone has experienced a long term effect. For example, an employee who is suffering from heart palpitations or rapid heartbeat may then develop anxiety as a result (which may last longer than the heart problems themselves), and the cumulative effect of these conditions would need to be considered.

At the time of writing, COVID-19 has not existed long enough to understand how long the symptoms may persist and how effective rehabilitation and any treatment may be. To this effect, we are unlikely to know for certain until next year and after further research whether those who are currently suffering symptoms of Long-COVID will do so on a “long term” basis. However, in our view it is likely that those with the most serious symptoms may well have a long term impairment (i.e. which lasts or is likely to last for at least 12 months) if effective rehabilitation and treatments are not forthcoming and easily accessible.

Day-to-day activities

Although the Act does not define what a normal day-to-day activity is, the Guidance states that day-to-day activities are generally those things that people do on a regular or daily basis such as reading and writing, having a conversation, travelling by various forms of transport and taking part in social activities.

In the context of work, normal day-to-day activities include general work-related activities, including interacting with colleagues, following instructions, using a computer, driving, conducting interviews, preparing written documents and keeping to a timetable or a shift pattern.

In our view, those with the most serious symptoms (for example, which prevent them from lifting heavy goods or working effectively at a desk) may well have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, and so will be disabled for the purposes of the Act.

What’s prohibited?

It is unlawful for an employer to:

  • Directly discriminate by treating a job applicant or employee less favourably than others because of their disability
  • Indirectly discriminate by applying a provision, criterion or practice (without sufficient justification) that disadvantages disabled job applicants or employees
  • Discriminate by treating a job applicant or employee unfavourably (without sufficient justification) because of something arising in consequence of their disability
  • Fail to comply with its duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage
  • Subject a job applicant or employee to harassment related to their disability
  • Victimise a job applicant or employee because they have made or intend to make a disability discrimination complaint under the Act

What should employers do?

The Employment Appeal Tribunal in Tesco Stores Ltd v Tennant [2019] confirmed that an employee’s disability must have a long-term effect at the time of the alleged act(s) of discrimination. If the employee’s condition has not lasted for at least 12 months at the time of the alleged discriminatory act(s), the definition of disability will not be met unless the employee can demonstrate that, at the time of the alleged discriminatory act(s), their condition was likely to last 12 months or for the rest of their life.

Consequently, whilst an employee may not be able to bring a successful disability discrimination claim related to Long-COVID yet if they cannot show that their condition has already lasted or is likely to last for 12 months or more (or the rest of their life), it may well be easier for them to do so in future if they can point to having already had Long-COVID for the requisite period. To this effect, employers will need to ensure that they do not treat employees in a discriminatory way in order to prevent any successful discrimination claims being brought against them now or further down the line.

We recommend that employers consider taking the steps below to help employees who currently have (or have had) Long-COVID return to work (if they are well enough to do so), and to reduce the risk of discrimination claims from employees.

  • Where employees return to work after having been unwell with Long-COVID, employers should consider holding a return to work meeting to check the employee really is well enough to return and whether they will need any additional support.
  • Employees who report Long-COVID symptoms or who are struggling with their work (where this may be due to Long-COVID) should be considered for prompt referral to Occupational Health, and medical reports may be required.
  • Be aware that employees who were seriously ill in hospital or intensive care could suffer from post-traumatic stress disorder, flashbacks, anxiety, depression and other mental health conditions, where counselling or other forms of specialist therapy may be beneficial.
  • Consider whether a risk assessment is required, especially where those with Long-COVID are working from home on their own.
  • Consider (ideally in conjunction with the employee) whether any reasonable adjustments can be made for those currently suffering from Long-COVID symptoms. These could include:
    1. Implementing or enhancing flexible working, reduced hours and/or adapting shifts to accommodate employees suffering from exhaustion so they can take rest breaks or naps as needed and plan their day and/or commute around their energy levels.
    2. Consider making changes to work stations for those suffering from joint and muscle pain so they are able to work more comfortably.
    3. Consider whether adjustments to the role would be appropriate, such as relaxing targets, even if this is on a short term basis.
    4. Where an employee has lost confidence in their abilities as a result of having been off sick for a long period of time, it may be helpful to arrange for the employee to have a mentor if they wish or enquire whether they would benefit from some counselling until they have recovered their confidence.
  • Make sure employees are aware they are permitted time off for medical appointments or rehabilitation they may need and that this is encouraged by the employer.
  • Make sure any external sources of support provided by the employer (such as any employee assistance programme, confidential counselling helpline, income protection or private medical insurance) have been signposted to employees.

Although we await further evidence and studies considering the effects of Long-COVID, it is likely that some employees with Long-COVID will be classified as disabled (though we expect the numbers to be relatively low). Given that initial reports suggest that Long-COVID has disproportionately affected those with other protected characteristics (such as women and Black, Asian and Minority Ethnic (BAME) employees), it is likely that where disability discrimination claims relating to Long-COVID are brought by employees, these may well be in conjunction with other forms of discrimination claim (such as sex or race), and employers should be live to this. From a practical perspective, so as to help avoid successful claims for disability discrimination employers will, in particular, need to proceed cautiously when those with Long-COVID return to the workplace, and be particularly live to the requirement to make reasonable adjustments where appropriate.

Communication between line managers and staff will be key, as this is a new medical condition which employers and employees are learning to adapt to and live with at the same time.

Employers may find it helpful to educate all employees about Long-COVID and its symptoms and effects, rather than just managers, in order to open a dialogue, so that colleagues are educated about and can be supportive of those suffering from Long-COVID and can assist with any reasonable adjustments that may need to be made, which may impact on their own working hours or patterns. Employers must take reasonable steps to prevent employees suffering from Long-COVID from being bullied on the grounds of any special treatment that they are perceived to be being given, as a result of their medical condition, which some employees, without proper education, may not realise can constitute a disability in law.

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